Special Challenges of New Jersey Same Sex Divorce

The reality is that divorce rarely is an “easy process.” Time and again, even so-called “simple divorces” devolve and involve challenging issues. With that in mind, New Jersey same sex divorce cases can present some unique complications that are not necessarily seen in mixed gender marriage dissolution proceedings. These include:

• Unique problems surrounding property division and debt allocation
• Child custody and parenting time issues
• Dealing with a shared residence
• Determining spousal support or alimony

New Jersey utilizes what is known as the equitable division standard when it comes to considering assets and debts in a marriage dissolution proceeding, no matter the gender of the parties to a divorce. Under the equitable division of property standard, assets and debts are divided between divorcing parties in a fair and just (or equitable) manner.

The equitable division of property standard does not require an equal or even distribution of assets and debts between spouses. Rather, a court considers the specific facts and circumstances of a particular case when determining the way in which property and debt will be divided between spouses.

A complication in a good number of same sex divorces is associated with determining what are and what are not marital assets and debts. Marital assets and debts are those that are acquired or accumulated during the term of the marriage.

The difficulty in certain same sex divorces is found in the fact that many couples lived together in a marriage-like relationship prior to the time that same gender marriages were lawful in New Jersey. When same sex marriages, many couples in this type of situation wed. In some instances, when a divorce occurs, arguments ensue over what should be considered marital assets and debts.

Another component of a New Jersey same sex divorce case that can be particularly problematic is that surrounding child custody and parenting time. There are cases in which couples have adopted a child during the course of a marriage. In that situation, custody and parenting time really is akin to that of what occurs during a same gender divorce.

On the other hand, there are also cases in which one spouse in a same sex divorce is the biological parent of a child. The biological parent may have the strongest claim in regard to custody. However, a contentious element in a case with this type of fact pattern would center around what legally might be called the equities associated with parenting time as well as a consideration of the best interests of a child in that regard.

Addressing the marital residence in a same sex divorce case can also present some difficult issues. There oftentimes is a situation in a same sex divorce case in which a married couple have lived in what has become the marital residence for an extended period of time. The couple may have been in a committed relationship and jointly owned a home which becomes a disputed matter in a divorce proceeding before the point in time that marriage became legal in New Jersey and the pair wed. Both individuals may have contributed to mortgage payments during the time period before the marriage.

The more global or broader dispute over the property arguably may transcend what a divorce court can address during a same sex marriage dissolution proceeding. In other words, further legal proceedings might be necessary to untangle financial issues associated with the real estate if the parties cannot reach an agreement between themselves.

Finally, the matter of alimony or spousal support can provide some additional challenging points of contention in a New Jersey same sex divorce case. These challenges are akin to what previously was discussed in regard to property and debt division in a marriage dissolution case involving spouses of the same gender. For example, a partnership between the spouses akin to a marriage might have existed before the point in time when same sex marriage became lawful in in the state of New Jersey. Call us today for a free consultation at (201) 845-7400.